Grant v. Department of Treasury

Aaron
Grant worked as a Special Agent in the Criminal Investigation
Unit of the Internal Revenue Service (IRS) until his removal
for alleged misconduct on January 30, 2013. Mr. Grant
appealed his removal and the agency’s final decision to
the Merit Systems Protection Board (MSPB). An administrative
judge upheld Mr. Grant’s removal and MSPB, in turn,
affirmed the administrative judge’s decision.
Thereafter, Mr. Grant, proceeding pro se, brought
this action complaining generally about his removal,
discrimination, and retaliation, as well as seeking judicial
review of procedural improprieties during the administrative
process. He sues Jacob J. Lew in his official capacity as
Secretary of the Department of Treasury, MSPB, and the MSPB
Chairman, Susan Tsui Grundmann. See Am. Compl. [Dkt.
7].

Defendants
moved to dismiss MSPB and its Chairman from the instant case
as improper defendants. See Mot. to Dismiss [Dkt.
12] (MTD). Mr. Grant filed a timely opposition, see
Opp’n [Dkt. 15], to which Defendants replied,
see Reply [Dkt. 16]. For the reasons that follow,
the Court will grant Defendants’ Motion to Dismiss MSPB
and its Chairman. The case shall proceed against Secretary
Lew of the Department of Treasury.

I.
FACTS

Mr.
Grant asserts various claims arising from his removal from
the IRS, which became effective on January 30, 2013. Mr.
Grant first filed a Complaint on June 26, 2015, which the
Court dismissed without prejudice on the basis that it failed
to set forth a short and plain statement of his claims as
required by Rule 8 of the Federal Rules of Civil Procedure.
See 10/1/15 Order [Dkt. 6]. Mr. Grant filed an
Amended Complaint on November 2, 2015 against Defendants.
Cognizant of the fact that Mr. Grant is proceeding pro
se and he had made an effort to organize the Amended
Complaint and provide somewhat detailed allegations, this
Court denied Defendants’ second Motion to Strike the
Amended Complaint under Rule 8 and ordered Defendants to
respond to it. See 11/24/15 Minute Order; see
also Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting
that pleadings by pro se litigants are held to less
stringent standards than formal pleadings drafted by
lawyers). Treasury filed an Answer to the Amended Complaint,
while MSPB and its Chairman moved to dismiss the claims
against them.

It is
still not clear from the Amended Complaint what the
circumstances were that gave rise to Mr. Grant’s
removal. Also, it is not entirely clear which statutes Mr.
Grant is invoking to assert his claims and whether he is
asserting all claims against all Defendants. Mr. Grant
utilizes broad terms such as disability, discrimination,
retaliation, due process, harmful procedural error,
suppression of evidence, and framing of charges. See
generally Am. Compl. Defendants construe Mr.
Grant’s allegations broadly and argue that, regardless
of the claims being asserted, MSPB and its Chairman are not
proper defendants in the instant case. The Court agrees.

Defendants
have offered some context to Mr. Grant’s Amended
Complaint by including the Administrative Judge’s
Initial Decision, Treasury’s Final Agency Decision, and
MSPB’s Final Order as exhibits to their Motion to
Dismiss. See MTD, Exs. A-C. These documents show
that Mr. Grant was removed from his job because, according to
Treasury, Mr. Grant: (1) grabbed the ponytail of a co-worker,
Special Agent Tara Reed, pushed her against a wall, and
kissed her against her will; (2) wore a firearm while
consuming alcohol; (3) drove an official vehicle after
consuming alcohol; (4) displayed nude photographs of women on
his cellphone to a government attorney; and (5) failed to
report a collision while driving an official vehicle.
Id., Ex. A [Dkt. 12-1] at 2 (Initial Decision). On
October 8, 2010, Treasury proposed Mr. Grant’s removal
in light of these allegations. Mr. Grant responded in writing
to the proposed removal, but Treasury sustained the removal
effective December 10, 2010. See id.

Mr.
Grant appealed the agency’s decision to MSPB alleging,
among other things, discrimination. The Administrative Judge
held a two-day hearing and, on December 15, 2011, sustained
the agency’s reasons and upheld the removal. See
Id. at 3. On appeal, MSPB issued a Final Order on August
1, 2012 rejecting Mr. Grant’s allegations of
discrimination, but reversing his removal on the basis that
the proposing and deciding Treasury official violated Mr.
Grant’s due process rights by engaging in ex
parte communications during a reply period. Id.

In
light of MSPB’s Order, Treasury reinstated Mr. Grant to
his position in September 2012. Upon his return, Supervisory
Special Agent Troy Burrus and Special Agent in Charge Rick
Raven told Mr. Grant that he was likely going to face new
disciplinary action based on information in Treasury’s
Report of Investigation in 2010. See Id. In
response, Mr. Grant filed an equal employment opportunity
(EEO) complaint alleging discrimination and retaliation by
agency officials. On December 7, 2012, Treasury proposed
again Mr. Grant’s removal and, while Mr. Grant filed a
written response to the proposed removal, it was sustained by
Treasury effective January 30, 2013. Id. at 3-4.

On
February 13, 2013, Mr. Grant filed a second EEO complaint
alleging discrimination and retaliation. Treasury rejected
these allegations in its Final Agency Decision. See
MTD, Ex. B [Dkt. 12-2] (Final Agency Decision). On December
11, 2013, Mr. Grant appealed his removal and Treasury’s
Final Agency Decision. Mr. Grant’s appeal alleged,
among other things, that the agency: (1) failed to prove
misconduct by a preponderance of the evidence; (2) violated
his due process rights; (3) retaliated against him for prior
protected activity; and (4) discriminated against him on the
basis of his disability (alcohol dependency), race, and
gender. See Initial Decision at 5. The
Administrative Judge upheld the removal and rejected Mr.
Grant’s claims. Id. at 51. On May 27, 2015,
MSPB affirmed the judge’s decision, but ordered the
judge to “clarify the . . . analysis that [Mr. Grant]
failed to prove his due process claims.” MTD, Ex. C
[Dkt. 12-3] at 2 (Final Order).[1] MSPB’s Final Order notified
Mr. Grant that if he did not request the Equal Employment
Opportunity Commission to review the final decision, he could
file a civil action with “the district court no later
than 30 calendar days after [Mr. Grant’s] receipt of
this order.” Id. at 19-20.[2]

Mr.
Grant brought the instant lawsuit against Secretary Lew of
the Department of Treasury, MSPB, and Chairman Susan Tuis
Grundmann. Mr. Grant complains about his removal from
Treasury and the processing of his employment grievances. He
seeks to be reinstated to his former position as a Criminal
Investigator, as well as back pay. See Am. Compl.
¶ 67.

II.
LEGAL STANDARD

A
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A
complaint must be sufficient “to give a defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). Although a
complaint does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. A court must
treat the complaint’s factual allegations as true,
“even if doubtful in fact, ” id., but a
court need not accept as true legal conclusions set forth in
a complaint, see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is “plausible on its
face.” Twombly, 550 U.S. at 570. A complaint
must allege sufficient facts that would allow the court
“to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678-79. In deciding a motion under Rule 12(b)(6), a
court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits or
incorporated by reference, and matters about which the court
may take judicial notice. See Abhe, 508 F.3d at
1059.

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